THE HIGH COURT OF SWAZILAND
Appeal No. 65/94
the matter between:
THE KING RESPONDENT
APPELLANT Mr. Ben Simelane
RESPONDENT Miss S.W. Nderi
(ex tempore) (2/11/94)
appellant was convicted at Siteki on 30th March 1992 by the Principal
Magistrate for Swaziland, Mr. Zondi, on a charge of armed robbery. In
September of this year, he filed a notice of appeal against both
conviction and sentence.
appears that regrettably, in the meantime, the record went missing.
The Crown does not oppose the bringing of this appeal out of time.
Mr. Simelane has told me, and of course I accept, that he himself had
made extensive efforts over a period of time to locate the record.
Accordingly, leave to appeal out of time is granted.
the hearing, the appellant abandoned that part of his appeal in which
he challenges his conviction. The nature of the crime was that the
appellant, together with another person who subsequently gave
evidence as an accomplice witness, obtained the services of a taxi
got into the taxi and in due course overpowered him, using a revolver
to intimidate him and eventually taking his taxi.
is true that in the reasons given for his sentence, the learned
Principal Magistrate did not explicitly deal with the personal
circumstances of the appellant; namely, that he was aged 24, that he
was a first offender and, I think properly it can be said, that
happily the taxi driver was not really injured in this incident.
Another factor is that the vehicle was eventually recovered though, I
must add at once, not through the assistance of the appellant.
is also true that the accomplice who gave evidence received a jail
term of only three years, but as I pointed out in the course of the
hearing of the appeal, although a person will never be penalised,
beyond the proper punishment, for choosing to defend a charge - in
other words, will not, if in the event he is found guilty after a
defended trial, be given additional punishment because he chose to
defend it - a person who pleads guilty on the other hand, to an
offence which he has committed, will always receive a lower sentence,
and sometimes a very substantially lower sentence; and he will in
fact receive a further reduction in the sentence if he goes a step
further and turns King's evidence - in other words testifies for the
Crown to help bring all of the perpetrators of an offence to justice.
offender who on the other hand has chosen to exercise his
constitutional right to conduct a defence cannot complain, however,
about that treatment of an accomplice - that more favourable
the present case, apart from the taxi driver - in other words, apart
from the victim himself - the accomplice was the only person who
could give direct evidence as to what happened. By abandoning his
appeal against conviction, the appellant is clearly acknowledging
that the accomplice was telling the truth (in other words that none
of the dangers which attend the evidence of an accomplice witness
applies here) and so I think it is obvious that the accomplice in
this case played an important part in bringing the other offender -
namely the appellant - to justice; and in fact of course he played a
leading part in enabling the eventual recovery of the stolen vehicle.
is quite true, of course, that in sentencing the personal
circumstances of an accused person are relevant. But it is my view in
this case that even though the learned Principal Magistrate did not
specifically advert to those factors, the sentence imposed was
nevertheless objectively the correct sentence.
robbery is, as the Magistrate pointed out, a prevalent crime. It is a
very serious crime especially where, as here, a revolver was used.
The other serious feature about it is that it involved an attack on a
taxi driver. In case intending criminals are not aware of this, the
courts of law will protect taxi drivers against this kind of assault
rigorously. It is one of the easiest things - and one of the most
cowardly forms of robbery - to hold up a taxi driver. The other
factor that I wish to advert to is that there were two men involved
in this crime against a single taxi driver.
those reasons, the appeal against the sentence is dismissed and the
sentence is confirmed.